Does the Second Amendment Secure a Right to Carry Guns in Most Public Places?

Another cert. petition asks the Supreme Court to resolve the circuit split on this question.

The case is Rogers v.Grewal, which challenges New Jersey's restrictive firearms carry license policy. There's a split on the subject among lower courts; the details are a bit complicated, but the short version is that the First, Second, Third, and Fourth Circuits have upheld such restrictive policies, while the Seventh, Ninth, and D.C. Circuits, together with the Illinois Supreme Court have struck down some such policies. Several amicus briefs support the petition, including one signed by, among others, the California State Sheriffs' Association, which "represents each of the fifty-eight California sheriffs."

The defendants have waived their right to respond, so here are the possibilities:

None of the Justices calls for a response, which means that the Court will deny review (likely on Feb. 22 or Feb. 25, because the petition is currently scheduled to be considered on Feb. 22).

One of the Justices calls for a response, but the Court eventually still denies review, as it has done before. (Such a denial might or might not be accompanied by a dissent from some Justices.)

One of the Justices calls for a response, and the Court eventually grants review, with the case being heard next Term, and likely decided during the heart of the 2020 election campaign.

One of the Justices calls for a response, and the Court holds the case pending New York State Rifle & Pistol Association Inc. v. City of NewYork, the Second Amendment case that the Court has already agreed to hear, and that might be heard in April. Depending on the reasoning of the New York State Rifle & Pistol decision, the Court could then either agree to hear Rogers, decide not to hear it, or send it back to the Third Circuit to be reconsidered in light of the New York State Rifle & Pistol decision.

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150 responses to “Does the Second Amendment Secure a Right to Carry Guns in Most Public Places?”

Weird seeing the Ninth rejecting restrictive gun policies. I haven’t followed all the court decisions closely, but didn’t the Ninth have some decision expanding gun rights put on hold for an en banc rehearing?

So far, every pro gun decision coming from the Ninth has been over turned en banc except for the carry case from Hawaii. And that one has been put on hold. I don”t know if there is an en banc hearing scheduled or not. It would be nice for Scotus to get rid of “may issue” and no issue of CCWs.

I really don’t understand the anti gunners objection to CCWs. They require all that they want. Strict background checks, regular training, and registration of gun owners (and guns in some places). /sarc

It’s not the CCW, it’s the stuff that people have been trying to tack on, like forced portability between states, and overriding property owners’ rights to exclude persons carrying with a permit.

Then again, I am not anti-gun (or even anti-gun-owner, in most cases). People who handle their weapons safely and responsibly should have whatever weapon they want. People who don’t handle their weapons safely and responsibly should face restrictions until they learn how to do so.

Forced portability is a direct result of states’ refusing to be reasonable with reciprocity. And why shouldn’t a private property owner’s rights be overridden? A restaurant owner has to serve two “married” men who come in. I support eliminating all public accommodation laws, but you don’t get to have it both ways.

Right to carry reciprocity legislation should be unnecessary, all states should recognize all other states’ licenses, just as they do for drivers licenses and marriage licenses.

Article IV, Section 1: Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.

Apply that to drivers licenses. Your application of logic misses since it would then require someone to obtain a drivers license in every state in which they desire to drive. Oh and don’t forget having to then also get insurance in each state in which they desire to drive since insurance is based on state of residence currently.

“Apply that to drivers licenses. Your application of logic misses since it would then require someone to obtain a drivers license in every state in which they desire to drive.”

You’re the one doing the applying, so any problems that arise from the application would be yours, not mine. So, YOUR application of logic misses. Guess applying the same rules to driving licenses and CCW permits is a bad idea.

Compare to law licenses, instead. Being licensed to practice law in state X does not mean you can practice law in state Y. State Y can choose to accept your law license in state X as “close enough” to a license to practice in state Y, and let you practice in state Y with no other credential, or it can ignore your state X license entirely, or it may let you pursue one case, and one case only, one at a time, with you humbly begging to be allowed to practice each time. But it isn’t state X that decides, it’s always state Y.

When Texas honors a New York driver’s license, they agree with New York that the holder should be allowed to drive in New York. Why would New York get a say in whether a holder is allowed to drive in Texas?

James, stop being intentionally dense. It is well established that Texas has no right to refuse to recognize a NY marriage certificate. Colorado has no right to refuse to recognize a California drivers license. Your only counter-example is based on professional licensing – a highly-suspect practice that is far more often abused for anti-competitive reasons than any possible constitutional justification.

Yeah… the 9th also upheld the “microstamping” law that required any new model handgun sold in the state of California to be able to “microstamp” each bullet fired by the gun in two separate places.

It apparently doesn’t matter that the technology doesn’t effectively exist, and that the major firearms producers note that it’s effectively impossible, according to the law. No new model firearms have been sold in California since 2014, since none of them have the necessary technology. (Except for the police. They have an exception, of course. And the film industry, for props. Can’t let the law get in the way of the newest model guns being available for movies)

And yet, people have been killed by being shot on Hollywood sets. If you’d followed Jason’s link, you’d see that Hollywood frequently uses real guns with blanks and dummy cartridges, which are none the less perfectly capable of firing real rounds if they’re inserted.

Because it’s geographically contiguous to Idaho and it possibly balances the size of the new circuits(I haven’t actually looked at the numbers.

Having one state covered by two federal circuits would be impractical, so I would make California a circuit by itself.

The 9th is objectively too large. In terms of population served, the 9th is twice the size of the second largest circuit and out of 12 geographically defined circuits (1-11 + DC) the 9th covers 1/5th of the US population.

Obviously, the above wouldn’t have been true when the 9th was created, but It wouldn’t necessarily hurt to have the circuit courts reorganized to better balance things out on a periodic basis. Maybe every 3rd census.

One may go anywhere in public space with the ability to breach the restrictions on free speech, until one actually breaches the restrictions on free speech. Which are also basted on things that directly endanger others. Until you produce the restricted speech, there is no penalty despite the ability to do so.

Yes that’s nonsensical, since we can’t ban the ability for people to speak but it is directly related to the following point.

The restrictions on fire arms in public spaces are based entirely on fear and not on anything that directly endangers others.

People fear fire arms, even if illogically so. “How do I know he’s not going to shoot up the place?” is an illogical fear. Do you fear everyone that they may just flip out and start attacking people for no reason, or any reason? Do you fear officers because they’re carrying? We’ve seen that officers are neither perfect nor always expert. So why don’t you fear officers as well?

Basing law on illogical fear is a bad precedent, despite the fact that it’s done repeatedly.

“One may go anywhere in public space with the ability to breach the restrictions on free speech, until one actually breaches the restrictions on free speech.”

Except that there are (allowable) restrictions on time, place, and manner, and some circumstances where you’re going to get arrested (and properly so) before you say a word.

“People fear fire arms, even if illogically so.”

True, if you insert the word “some” at the front of that sentence. But it’s also true that it’s sometimes quite logical to fear the guy WITH the gun, whether it’s because he’s screaming “Admiral Ackbar!’ out in front of the movie theater, or because he’s saying “hold my beer” at a neithborhood block party.

Indeed, but all of the locations where those exist have less prohibitions than do fire arms. Compare them and I think you’ll find that fire arms are much more restricted in public locations than speaking your mind (without shouting ‘fire’ or inciting to riot, etc.).

The application of scrutiny to each is unbalanced, making the 2nd Amendment a 2nd class right. Which fails every single test of the Constitution.

Perhaps James can share with us where to find the laws that mandate muzzles on citizens to prevent them breaching the restrictions on free speech…

Note that he acknowledges that one will draw the attention of the justice system only AFTER that breach is done. Yet he is fully in favor of prior restraint, or the fear of someone, somewhere, doing some kind of harm, with their firearms.

The 2nd doesn’t address the manner in which one may bear arms. But it does indicate that it shall not be infringed. Do we then get to tell people in this case the manner in which they can speak? Are we required to utilize the oxford comma? Which format should we utilize when presenting a speech?

There are two reasons I’m not a fan of open carry. First in the every day situation conceal carry prevents anyone who is fearful of guns from having to feel that fear from my carrying. Second in the not common but possible situation where a man open carrying was approached by a stranger who complimented his fire arm. Then pulled his own fire arm and expressed his intent to take the open carriers fire arm.

3ducerist – Your claim that concealed carry is a right under the Second Amendment is a right because the text of the Amendment doesn’t say one can’t carry concealed is the most moronic argument in favor of concealed carry I’ve come across. The First Amendment says nothing about libel or slander but anyone who would claim that the First Amendment protects speech which has historically and traditionally understood to be unprotected speech would be laughed out of court.

The tradition and history of the Second Amendment is that concealed carry is cowardly, criminal, and most importantly, not protected by the Second Amendment. Fortunately, Justice Kavanaugh agrees with me and so “No concealed carry for you.”

The 2nd says the right of the people to keep and bear arms shall not be infringed. That is the plainest statement of a right in the entire constitution.

A lot of people in government that are of the opinion that they can do anything they are not specifically prohibited from doing, like prohibiting concealed or open carry. The tenth amendment addresses that claim. The tenth amendment has also been used by the states to limit federal intrusion into their rightful powers. The tenth doesn’t stop at the states though, it also sets a hierarchy of rights and powers, telling the states hands off individual rights.

The 10th amendment makes a pretty plain statement about rights reserved to the people: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, OR to the people.”

OTOH, you have to consider that a good deal of the gun control movement’s success stems from having a generation or two back managed to make open carry unusual. The result is a lot of people who are kind of phobic about guns, because the only time they see somebody with one is in crime dramas.

The goal of open carry is to treat that phobia; get people used to seeing law abiding non-police with guns again, so that they don’t freak out about guns anymore.

I don’t think the 2nd amendment specifically protects open carry, it just protects carry itself, that being the “bear” part of “keep and bear”; “Own and carry”. So, from that perspective, one of them has to be permitted, and permitted as a right, not privilege. But it doesn’t much matter from a constitutional standpoint which it is.

From a tradition standpoint, there’s no way to avoid that, at the time the amendment was adopted, concealed carry was at best frowned upon. It really only became popular as a way to avoid being hassled by the cops in anti-gun jurisdictions.

How many times are you going to repeat that mistake. The 2nd Amend. doesn’t protect arms you can’t carry, purely on a textual basis. Don’t start that pablum that “bear” means “to bring a cannon to bear” because the amendment doesn’t protect your right to aim a weapon. Yes, yes, the Founder were fine with ships of war with cannons in private hands, blah blah….but they didn’t protect that in the 2nd Amendment because they chose the very specific words “keep and bear”.

We all should be very forgiving of zealotry in defense of liberty, but at some point zealotry is counter productive when it is unsupported by evidence, even if your heart is in the right place. That’s a big difference between the left and the right. We want to be morally *and* factually right.

As I stated before AZ “gunowner”, you are not on the pro-gun side of the Natural and Constitutional right to keep and bear Armaments. You want to make up government restrictions of Arms that are not listed in the Constitution.

Some gun owners support background checks too. Those would be gun owners who do not fully support the protections of the 2nd Amendment.

At some point, when we are holding up a white piece of paper to you and you’re saying “it’s green,” might you consider that perhaps that you’re the one who’s wrong? It’s that basic. The Second Amendment says “keep and bear” and bear means “carry” not “aim” in that context.

This is not to say that I don’t agree with you that there shouldn’t be any gun control, there shouldn’t be any, or not much anyway, but the English language and rationality itself are against you on this one, in that the Second Amendment doesn’t protect the right to keep and aim cannons or tank turrets or steer battleships.

He could look in the 9th, or in the fact that in general the Constitution is supposed to form a gov’t of “limited” powers so he could make the argument that since the gov’t has not the power he has the right.

But he is not smart enough to understand what the Constitution and Bill of Rights actually does or does not do.

He could look in the 9th, or in the fact that in general the Constitution is supposed to form a gov’t of “limited” powers so he could make the argument that since the gov’t has not the power he has the right.

But he is not smart enough to understand what the Constitution and Bill of Rights actually does or does not do.

They shouldn’t refuse cert with a circuit split of this scale. But you could have said that any time in the last 8 years or so. Something apparently changed when Kavanaugh entered the Court. Though you have to wonder what, since the whole Heller/McDonald majority was present until Scalia died. Somebody changed their mind after McDonald.

The best guess is that nobody was confident enough of Kennedy’s vote to risk a case being heard, and establishing some precedent. But, of course, that doesn’t tell use which direction Kavanaugh shifted the Court, just that he did.

That being the case, I’m betting options 3 or 4. The Court now wants to settle these cases, we just don’t yet know which way.

Just wanted to interject that neither Gorsuch, nor Kavanaugh have a stellar fire arms record. In fact so much that the state group that tackles 2A where I live was neutral on Gorsuch and against Kavanaugh.

Yes, you’ll note that I wrote, ” But, of course, that doesn’t tell use which direction Kavanaugh shifted the Court, just that he did.”

OTOH, the gun laws that are coming down the pike right now are rather extreme, you wouldn’t need Kavanaugh to be a clone of Neil Knox to rule for the 2nd amendment, you’d just need him to not be radically anti-gun.

You’re the one who brought up the need for an odd number of justices for the Court to feel comfortable about tackling controversial topics. I was just pointing out that, once Scalia had been replaced, the Court was back to 9 members, at least until Kennedy retired.

But they still didn’t grant cert for any 2nd amendment cases.

So it wasn’t the lack of an odd number of justices that was causing them to refuse to grant cert, even in the presence of multiple circuit splits. They were actively avoiding the topic for some other reason.

They also didn’t grant cert to resolve, once and for all, whether Clark Kent can be deported. that guy’s been flouting immigration law for decades. Just because he SAYS he’s for truth, justice and the American Way, doesn’t change the fact that he’s an illegal alien.

I think it’s more likely that Roberts’ concern for his “legacy,” which of course means being a favorite of the left-wing media, is the culprit. In which case, these cases will be too narrow to be helpful until Ginsburg croaks (which will be soon, god willing).

That would be the answer, of course. Trying to impeach her last year would have been stupid. This year it would just be a joke. She could be in a vegetative state, and the votes wouldn’t be there.

We could, however, use something like the 25th amendment for judges, don’t you think? Instead of relying on impeachment for judges and Justices who are becoming mentally incompetent, but refuse to admit it.

“Why didn’t you do this last year, when you had the votes?” Seriously? She wasn’t ill at the time. The mainstream misleadia freaked out when FLOTUS wasn’t seen for 20 days. What’s the Weekend at Ruthie’s count now, 72 days?

Right wingers have been known to carry out ethnic purges, as well. I seem to recall one in Germany, and a whole bunch in the new Balkan states, and some open calls for it in some of those Middle East places.

No, Hitler was just another variety of left-winger, a “national” socialist. Even if the left has disowned him due to the Holocaust. He was still implementing socialist policies, just with a slightly different spin.

I would argue that there are differences. Sure, not in the limiting case, but before that. There have been a lot of right-wing authoritarian states, but left-wing states seem to go for totalitarian, not authoritarian.

I think it’s because they want your heart and mind, not just your obedience.

I also found the amicus brief of the New Jersey Firearms Owners et al. to be interesting as it details a slide down a slippery slope (beginning on page 5) commencing with a step downslope in 1898 which eventually got us to where we are today within the confines of New Jersey.

The combination of “reasonable” steps including modest legislative changes to prohibited behavior, a number of incremental changes in the severity of punishment of prohibited behavior, and changes in judicial and administrative interpretation of statutes would leave boiled frogs perplexed.

(With apologies to our esteemed host if I’m using the term “slippery slope” in a manner inconsistent with his tome on the matter.)

Why would a state waive response in a case like this? Is it effectively acknowledging that the case should be heard or there’s no good argument for not hearing it? Or does it think review so unlikely the case isn’t worth its time?

It makes little sense that the right to “keep and bear arms” does not include some kind of right to carry outside of the home. It is rooted not only in our constitution history and traditions but that at common law too. In fact, it was pretty easy in England (even unregulated in some areas) to carry a pistol prior to about the 1960’s.

That said, I think the legislative branches have a little more leeway to regulate carrying in public. But, it can’t much like NJ, NY, and CA do be effectively “no issue” states. If you have a constitutional right there must be some avenue in which that right can be exercised. Having a pathway on paper, but in practice just denying it to basically every applicant should not survive judicial scrutiny.

It has been awhile since I have lived in NJ but I remember a friend who carried jewelry as a messenger applied for a carry permit. Took him a year to get a hearing with the trial court. There, despite being represented by counsel, the judge just summarily dismissed his application (which was supported by the local police chief) without hearing any arguments. The courts reasoning was “this court does not issue permits, period”. I think he took up an appeal but not sure what happened to it.

Impeaching every federal judge that refuses to uphold the protections of the 2A would be a great start.

The gun grabbing states would likely drop the issue once all Defendants arrested for carrying guns – were released from custody by federal judges, got huge settlements in federal court for state’s violating civil rights, and police going to jail for violating civil rights.

Surprised that there has not been a request for a response. I think that the NJ AG was a little arrogant waiving response, given how bad the 3rd circuit opinion in Drake was – especially now that we have a true circuit split and a conservative court. Part of me wishes that the Supreme Court just takes their waiver as concession and grants without asking for a response. That will get their attention.

I find it interesting that the very idea of criminalizing the carrying of a fire arm in public; no other actions indicated, just ‘possession’ outside of the home; as a means of resolving criminal activity. A law abiding citizen has no intent to do harm and wishes generally to simply be left alone to go about one’s business.

Where a criminal is intent on ignoring the very law whose intent is to prevent them from doing the same. So because the criminal commits a crime, the rights of the law abiding citizen are curtailed. A criminal by definition doesn’t care about the law and will not obey it anyway.

What then is the benefit of criminalizing something such as this? Is it the assumption that simply being in possession of a fire arm also ensues that intent exists? That seems outright fallacious on so many levels. The 4th circuit ruled that ‘armed’ necessarily means ‘armed and dangerous’, which is ridiculous on it’s face as it effectively means anyone with a knife or gun is immediately ‘armed and dangerous’ without having done anything else.

But then again, logic doesn’t always seem to follow the circuitous reasoning that some people like to invent for their decisions.

Politicians always a)feel the need to do something; b)by the government; 3) involving solutions whose costs are only apparent decades after they have left office; and 4) which seem easy and cost free today. It’s in their nature, like a scorpion stinging. “Conveniently, politicians always exempt themselves and their cronies (a corollary to #3).

“Gun control” checks all the right boxes. We’ll see if it works, decades later, but hey we did something!

I mean, if you’re going to issue gun control at least support banning hand guns since all the data show these are the most common used in homicides (it’s above 70%). This crap about all the ‘assault weapons’ stuff just isn’t borne out by data. Are they nasty? Sure. But if politicians actually wanted to have an effect, they’d ban hand guns.

Which leads me to conclude that you’re precisely right about most politicians wanting to do as little as possible while seeming to do some huge thing.

Alternately, it’s not the crime they’re concerned about, but rather the notion that they, personally, might be picked off by a sniper, or that the public might be able to effectively resist the government at some point.

I think a certain sort of politician finds the fact that an armed public limits what the government can feasibly do intolerable. And from that perspective, it’s rifles, not handguns, that are the real worry.

“My ARs are for a SHTF situation where society has completely broken down.”

In which the most likely outcome will be that some dude will A) shoot you, and B) take your stuff. Because that’s what happens when society completely breaks down. Avoiding this is why people build societies in the first place.

First, lots of people have tried over the years to ban handguns. Like “Handgun Control inc” which became the Brady campaign. Heler was about D.C. near total ban on handguns.

Second, gun control has always been about incrementalism: Ban things few people have or find useful, like evil black rifles carried by gangsters, as a step to a wider ban.

Most gun control groups just want to ban guns. More recently, post Heller, handguns have somewhat been taken off the table. Groups have been trying to chip away with permit-to-purchase schemes, axes, or insurance. But there is no clear direction from the court on rifles or appropriate permitting or licensing restrictions, so groups are taking the gains where they can get them, like backdoor handgun ban in CA on new pistols (see Kopel’s post).

If and when you read the cert petition you will discover that instead of arguing that there is a right to carry firearms in public, the petitioners are arguing that Open Carry can be banned in favor of concealed carry (even though the licenses allow for both Open and concealed carry of handguns) and, of course, the petitioners have limited their case to carrying only handguns and only handguns which are easily and ordinarily carried concealed, i.e., a type of firearm which might not even be protected under the Second Amendment because the text, history, and tradition of the Second Amendment is that firearms which are easily and ordinarily carried concealed are not borne as arms and can, therefore, be banned.

I would agree with you that it can’t be banned, as a strict constitutional matter. But in terms of arguments the Supreme court would sign onto, “you’ve got to allow SOME kind of carry” is a stronger argument.

No, that abrogates to the SC the power to decide how you can “bear” arms, whereas the appropriate answer of course is what did the Founders mean when they wrote the 2A.

The modern day debate over open vs concealed didn’t exist then, nor did the idea that the gov’t could ban the open carry of arms (at least for whites). Indeed, that was the fear that prompted the adoption of the 2A, to protect that very right.

Clearly open carry was considered the norm at the time. The only question is whether that can be stretched into a right to also carry concealed.

I think we’re much better off arguing that open carry is absolutely protected (and normal incidental concealed carry such as in luggage etc) and then let the practical argument play out as more states go to Constitutional carry (or expand “shall issue” etc).

It goes like this: If you want to come in, your gun can’t come with you. (i.e., the security area at the airport.) Your right to keep and bear is not infringed there… you are voluntarily choosing which is more important to you… carrying your weapon with you, or catching your flight. If your choice was catching your flight, well, that was your choice.

It can’t be banned for the whole state, but smaller areas. Since most states include courthouses in their “check your weapon at the door” zones, I wouldn’t look too hard to see that overturned by a judge.